Judicial Activism and the Death Penalty, Part Three

Paul Dean


Over the last two days we have considered the U.S. Supreme Court's ruling banning the death penalty for persons under eighteen years of age. Our consideration has revolved around the headings of states rights, court precedents, the nature of law, and accountability. In this ruling, states rights have been trampled, procedure regarding precedents has been ignored and foreign consensus has been used in support of the ruling over against the will of the American people, the distincition between transcendent law and arbitrary public policy has been blurred, and a segment of the population has been relieved of some of its accountability. Today we raise questions regarding the death penalty itself and tomorrow we will sharpen our exegetical pencil to round out our disussion on the issue.


Fifth, part and parcel of this discussion for us is the death penalty. In order for the death penalty to be enforced for violation of God's law, the death penalty itself must be proven to be part of God's unchanging law. If it can be, then, for the Christian, the debate is over concerning whether or not Christians should support the death penalty in general. Of course, the question remains as to who should enforce it. But, if the death penalty cannot be proven as being part of God's law, then the penalty for murder should be determined by the individual states under our American system, not a centralized government or a global consensus. Moreover, if the death penalty is not part of God's law, because of the finality of such a sentence, the Christian could not support the death penalty in good conscience. Too much room for abuse and error exists in our current system.


Our view aside, majority consensus in each state would rule the day in determining such a dynamic. If there is a majority consensus within a particular state to adopt or ban the death penalty, then that state certainly has the right and the obligation to follow the will of the people. Even in a centralized governmental system such as the one we have now, whether imposed or granted, the consensus must come from the states by way of representation.  For the Supreme Court to simply cite a consensus and act upon it with no vote, let alone no proof, is the height of arrogance, judicial activism, and an infringement upon the liberty of the American people. Scalia dissented, argued that a national consensus did not exist, and said the majority opinion was based on the "flimsiest of grounds." We have seen that it was based on a philosophical commitment different from our own.


While Justices William H. Rehnquist and Clarence Thomas joined Scalia in seeking to uphold the death penalty in this regard, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen Breyer, joined Kennedy in the majority ruling. Justice Sandra Day O'Connor filed a separate dissent, arguing that a case-by-case examination of a young murderer's maturity would be a better approach.

While it's been disappointingly difficult to agree with O'Connor on many things (she is in support of using international law on other things), she may be on to something here. The thrust of our argument thus far has been to defend states rights and American sovereignty for Americans. But, the question of the death penalty itself should be a point of careful consideration for us. In a system where many have been executed and later exonerated, review is in order. Most of us affirm the death penalty, at least in principle, but it is hard for some of us to ignore the fatal flaws in our current system. Not only are the rights of individuals in play, but the taking of innocent life is abhorrent to the Christian. While most of us who are socially conservative will clamor for tougher penalties and often lament criminals getting off on technicalities, we should hold the rhetoric for a moment and take a look at what we give up if we get our way. We give up due process and we will be kicking ourselves for our stupidity if and when we find our own heads on the chopping block (for perhaps simply preaching Christ).

Moreover, a great need exists for a reasoned defense of the death penalty from the New Testament. Most of the arguments from the folk in my camp come from the Old Testament. The OT is the Word of God and applicable today. Those who ignore it do so to their own detriment and spiritual impoverishment. At the same time, we must be very careful in our exegesis.

For example, how many sermons have we heard on 2 Chron. 7:14 with application to America? The text reads, "If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land." We often hear preachers tell us that if the American people follow this verse, then God will heal our land. The problem is that the American people are not God's people. The people of God in this text are the Israelites. They were the chosen and covenant people of God. The other nations of the earth did not have that status. To say that Americans are the people of God is to misunderstand Scripture completely. This verse cannot apply to America. We are not a theocracy. While America may have had great Christian influence in its birth and life for a while, it could never be described as the people of God. Nor could it be described as a Christian nation. A Christian nation by definition would have to be one large church and be governed by ecclesiastical rule. There is no such thing as a Christian nation. The people of God today are found in the church. The church is comprised of people from many nations and will ultimately be comprised of people from all the nations (people groups).

One might argue that if the people of God in America follow 2 Chron. 7:14, then God will heal their land. If the church in America repents, then God will heal their land. The question is, "what land?" The church does not have a land. The church is spread out all over the globe and we look for a country whose building and maker is God (Heb. 11:10). Even Abraham knew the land promise to him and his seed was not ultimately physical land, but the church of Jesus Christ and ultimate rest in Him (Heb. 11:9-10).

The point is that we must be careful in our handling of Scripture. Does the death penalty in theocratic Israel have application in America? Before we answer too quickly, theonomists aside, most Christians would hesitate in the face of other questions. For example, how many of us would be willing to say that the civil law imposed upon ancient Israel under the Old Covenant should be imposed upon Americans today? Such an imposition would require the death penalty for adultery or Sabbath breaking. How many of us would hold to that? Of course, one cannot reject even that dynamic out of hand without a reason.

For most of us, the reason to reject such is the New Covenant. Old Covenant civil law has been set aside with the inauguration of the New Covenant and establishment of the church. The church may exist and thrive under any government, even unrighteous and oppressive governments. Often the blood of the martyrs is the seed of the church. Thus, one must forge a reasoned rationale in support of the death penalty from the New Testament.

Many would cite Rom. 13:4 as a New Testament support for the death penalty. That text may very well be enough. (We do have Gen. 9:6 prior to the establishment of the Old Covenant). However, we must be sure that Rom. 13:4 is prescriptive and not descriptive. Other exegetical questions remain as well. Has God ordained government to be a righteous instrument in His hand to execute wrath upon those who break His law? Or, is Paul simply telling Christians to submit to the government because if they don't, and the government defines them as evil doers or law breakers in their sight, they will be executed? In that interpretation, government exists as God's minister indeed: it is a minister for our sanctification. One searches history in vain to find very many states that could be described as righteous instruments in God's hands executing God's law. Most governments have perpetrated a thousand times more evil upon people than all the murderers on death row combined.

Again, I am in favor of the death penalty for certain crimes in principle. I am simply making an appeal for someone to give us a solid rationale from the New Testament that answers the exegetical questions I have raised in addition to others. As Christians, we should want the Christian worldview to influence our government as well as all governments. We add our voice to the public debate in order to influence our world for Christ. His kingdom is advancing and a full orbed biblical worldview does not adopt a fortress mentality and disengage from the world. We must engage the culture from a Christian perspective. We must think and speak biblically that we might fulfill our role in advancing God's kingdom in the world for the glory of His Son.